March 2003

Attorneys Fees — Separate Claims

JPG Enterprises, Inc. v. Viterito
28 Fla. L. Weekly D581 (Fla. 4th DCA 2003)

In an arbitration case, the plaintiffs’ unsuccessful assertion that there should be additional arbitration did not amount to a separate claim; thus the trial court was not required to award fees to the defendant for successfully opposing it.

Attorneys Fees — 57.105

Bisson v. Arellano
28 Fla. L. Weekly D398 (Fla. 3d DCA 2003)

In a case to which the 1995 version of 57.105 was applicable, it was error to award attorneys’ fees against the plaintiff’s attorney, where lawsuit was not frivolous from its inception. The effective date of the revisions to 57.105 was October 1, 1999. It’s not clear from this decision whether the old version of the statute applies throughout the entire course of a case, or just to activities in the case that occurred before the effective date of the statute. Rosenberg v. Morales, 804 So.2d 622 (Fla. 3d DCA 2002) seems to suggest the latter.

Deceptive and Unfair Trade Practices (FDUTPA)

28 Fla. L. Weekly S229 (Fla. 2003)

The Florida Deceptive and Unfair Trade Practices Act, 501.201-.213, Florida Statutes, applies to a private cause of action arising from unfair or deceptive acts involving a single party in a single transaction or directed to a single contract.

Evidence — Expert

Liberatore v. Kaufman
28 Fla. L. Weekly D389 (Fla. 4th DCA 2003)

On rehearing, the court holds it was reversible error to allow the defendants in a medical malpractice case to bolster their experts’ testimony with bulletins from the American College Of Obstetrics and Gynecology. The experts testified that, so long as the defendant doctor followed an ACOG bulletin, he did not violate the standard of care. In addition, the defendant should not have been permitted to testify that he had been named to a list of “top doctors” in a publication.

This case, in a footnote, also holds that the “bolstering” issue was properly preserved for appeal where the plaintiff objected the first time the ACOG bulletin was mentioned and then requested a standing objection. However, there are some cases that say a standing objection is not sufficient, so be careful.

Insurance — Duty to Defend

Roberts v. Florida Lawyers Mutual Ins. Co.
28 Fla. L. Weekly D632 (Fla. 4th DCA 2003)

A dispute between an insured lawyer and his former law firm over how to split the fee in a case was not covered under the lawyer’s professional malpractice policy.

Insurance — Exclusions

Nationwide Mut. Ins. Co. v. Bates
28 Fla. L. Weekly D546 (Fla. 1st DCA 2003)

A commercial “all risks” policy exclusion for damages caused by “settling” applied only to normal settling, and did not exclude damages caused by subsidence resulting from decay of construction debris that, unknown to insured or insurer, was under the building.

Insurance – Occurrence

Koikos v. Travelers Ins. Co.
28 Fla. L. Weekly S194 (Fla. 2003)

In a negligent security case where multiple victims were shot, each shooting was a separate “occurrence” under a commercial general liability policy. The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The term “accident” was not defined in the policy. The court held that it includes not only an accidental event, but also injuries or damages that are neither expected nor intended from the standpoint of the insured.

The Court determined the number of occurrences by “focusing on the immediate cause – the act that causes the damage – rather than the underlying tort – that is the insured’s negligence.” In this case, the Court focused on the shootings as the immediate cause. The Court emphasized that it was not focusing on the number of injuries or victims, which would have been an “effect” theory, but on “the independent immediate acts that gave rise to the injuries and the insured’s liability, which the Court deemed the “cause theory.”

The court held that the term “continuous or repeated exposure” was intended to expand the definition of “occurrence” by including ongoing and slowly developing injuries. It was not intended to restrict coverage by making multiple occurrences one “occurrence.”

Insurance — Spoliation

Humana Worker’s Compensation Services v. Home Emergency Services, Inc.
28 Fla. L. Weekly S227 (Fla. 2003)

An insurance policy applying to “bodily injury by accident” does not provide coverage for claims against an insured for negligent spoliation of evidence, even where the evidence is relevant to a personal injury case.

Insurance — UM

Denoia v. Hartford Fire Ins. Co.
28 Fla. L. Weekly D432 (Fla. 3d DCA 2003)

An insurance policy’s UM coverage applied to injuries resulting from an accident caused by a steel beam of unknown origin that was lying in the road. The only plausible source of the beam was that it fell out of an unidentified truck. Therefore, the truck was “a hit and run vehicle whose operator or owner cannot be identified and which hits or which causes an accident result[ing] in bodily injury without hitting” the insured’s car.


Yacht Club Southeastern, Inc. v. Sunset Harbor North Condominium Assoc.
28 Fla. L. Weekly D611 (Fla. 3d DCA 2003)

The defendant developer should not have been sanctioned for disclosing, to unit owners, what went on at mediation, where the plaintiff was the unit owners’ condominium association in its representative capacity, so the unit owners were actually parties to the mediation.

New Trial

Fisher v. Smithson
28 Fla. L. Weekly D507 (Fla. 4th DCA 2003)

The fact that the jury deliberated only 15-20 minutes before returning a defense verdict is not, alone, grounds for a new trial. However, the trial court did not abuse its discretion in granting a new trial where it found that the verdict was contrary to the manifest weight of the evidence. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 1999). Although the trial court stated at the hearing that it might not have granted the motion if the jury had not come back with a verdict so quickly, the appellate court treats this as “extraneous judicial musings” in light of the trial court’s clear and definite statement that the verdict was contrary to the manifest weight of the evidence.


Romine v. Florida Birth Related Neurological Injury Compensation Association
28 Fla. L. Weekly D471 (Fla. 5th DCA 2003)

The doctrine of election of remedies did not bar the plaintiffs’ NICA claim, even though they settled a civil action against two of the treaters of their baby, under the 1998 version of the statute that was in effect at the time the baby was born. It was error to retroactively apply the 1998 amendment to 766.304.

Nursing Homes

NME Properties, Inc. v. Rudich
28 Fla. L. Weekly D454 (Fla. 4th DCA 2003)

A nursing home licensee has a nondelegable statutory duty to provide adequate care to its residents. Therefore, even though the nursing home had a management agreement with an independent contractor, under which the independent contractor was responsible for all hiring, firing and daily management, the nursing home was still responsible for compensatory and punitive damages for the nursing home resident. In general, when an activity can be performed only pursuant to a government license, the licensee remains responsible for the performance of the activity, no matter who actually carries it out.

Offer of Judgment

Simon Debartolo Group, Inc. v. Bratley
28 Fla. L. Weekly D673 (Fla. 1st DCA 2003)

The first district holds that a contingency multiplier may be awarded for fees under the offer of judgment statute. The court notes that the statute says that the court should consider “all other relevant criteria” and refers to the Supreme Court guidelines, which allow a multiplier. The court agrees with the Second and Fourth DCAs, and disagrees with the Fifth. The Supreme Court heard argument on this issue last month in Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001 (en banc), review granted 826 So.2d 992 (Fla. 2002). I watched the oral argument and it looks like it is going to be close. The Third District has not directly addressed this issue. In Amisub v. Hernandez, 817 So.2d 870 (Fla. 3d DCA 2002), the court noted the conflict among the DCA’s but declined to award a multiplier in that case because the plaintiff had not proved the facts necessary to justify a multiplier under Standard Guaranty v. Quanstrom, 555 So.2d 828 (Fla. 1990), including inability to otherwise obtain competent counsel and inability to mitigate the risk of nonpayment.. (The plaintiff and attorney had renegotiated their fee agreement). One might infer from that decision that, in the Third District, a multiplier could be awarded in an appropriate case where sufficient proof of the Quanstrom factors was presented.

Premises Liability

Zimmerman v. Eckerd Corp.
28 Fla. L. Weekly D613 (Fla. 3d DCA 2003)

Where there was no evidence about the liquid on defendant’s floor that plaintiff slipped on, what it was or how it got there, the store manager’s unimpeached testimony that the floor was inspected and maintained every five to ten minutes rebutted any presumption under Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001). Therefore, the trial court properly granted summary judgment to the defendant.


Hyundai Motor Co. v. Ferayorni
28 Fla. L. Weekly D527 (Fla. 4th DCA 2003)

It was error to grant remittitur in a case involving the wrongful death of a child, where the jury awarded over $3 million to each parent.
This is a decision on rehearing. The court also withdraws the portion of its prior opinion that allowed the name of the drunk driver to appear on the verdict form, where the claim in this case was that the child died because the seat belt malfunctioned. See D’Amario v. Ford Motor Co., 806 So.2d 424 (Fla. 2001).


Publix Super Markets, Inc. v. Griffin

28 Fla. L. Weekly D539 (Fla. 2d DCA 2003)
The court did not have jurisdiction to enter an order imposing sanctions on one of the parties after a notice of appeal was filed from an order granting new trial.